Author: Phạm Huyền

Note to the defendant when participating in dispute resolution by arbitration

Written by Phạm Huyền on 21 November, 2022. Posted in Dispute Settlement, Giải quyết tranh chấp.

In principle, the settlement of disputes by Commercial Arbitration shall be carried out when the parties have an Arbitration Agreement. In particular, the defendant is the person who is sued by the plaintiff at the Arbitration Center to ask this agency to resolve the dispute. To protect thei legitimate rights and interests, what should the defendant pay attention to when participating in dispute resolution by Arbitration? Let’s follow the article below of TNTP to find the answer.

When to receive notice of a petition

When a plaintiff sues a defendant at the Arbitration Center, it will be responsible for sending a notice of action and other relevant documents. to the defendant.

According to Article 32 of the Law on Commercial Arbitration 2010 (“Shopping Mall Law 2010”), if the parties do not have other agreements or the arbitration rules o not provide for otherwise, within 10 days from the date of receipt of the petition, accompanying documents and documents of advance payment of arbitration fees, The arbitration center will send the defendant a copy of the plaintiff’s petition and other documents accompanying the petition.

The moment the defendant receives the notice of the petition is when the defendant officially learns that he is being sued at the Arbitration Center. It is also time for the defendant to prepare a plan to best protect his rights and interests.

When to submit the self-defense to the Arbitration Center and the plaintiff

Under Clause 2, Article 35 of the Law on Shopping Malls 2010, for isputes be settled the arbitration enter, if the parties do not have other agreements or rules proceedings of the Arbitration Center without other provisions shall be within 30 days from the date of receipt of the petition and documents besides, the defendant must send the Arbitration Center a self-defense copy.This deadline may be extended if requested by one party or parties.

Where the defendant contends that the dispute does not fall under the jurisdiction of the Arbitrator, there is no arbitration agreement, invalid arbitration agreement or agreement if the referee cannot do so, it must also state that in the self-. The Defendan may take an objectionable view of the Arbitration Agreement, otherwise the Defendant will lose the right to object.

Accordingly, the self-protection includes the following contents:

Date, month, year of self-protection.
The name and address of the defendant.
Basis and evidence of self-defense, if any;
Name and address of the person chosen by the defendant to serve as arbitrator or offer to appoint an Arbitrator.

The defendant must still choose an arbitrator or ask the arbitrator center to appoint an arbitrator.

Defendant’s right to sue plaintiff again

Under Article 36 of the 2010 Law on Shopping Malls, the defendant has the right to sue the plaintiff again on issues related to the dispute.

The defendant’s re-suit must be based on the arbitration agreement upon which the plaintiff sued the Defendant.
The lawsuit must be filed in its form, independent of it self-protection.

The application must be sent to the arbitration centre at the same time as the Self-Defense is submitted; and

The suit was resolved concurrently by the same Board that dealt with the Plaintiff’s

Negotiation and conciliation when resolving disputes by Arbitration

Under Article 38 of the 2010 Law on shopping malls,the parties have the right to negotiate and agree to terminate the dispute settlement. In case the parties themselves agree to terminate the dispute settlement, they have the right to request the President of the Arbitration Center to make a decision. intends to suspend dispute resolution.

When being sued in Court or Arbitration, the parties will always prioritize self-negotiation and mediation with each other to resolve disputes. This option will help the parties save time, costs, and money.Therefore, when being sued in arbitration, the defendant may consider this option to resolve the dispute with the plaintiff.

Above is the content of the article “Note to the defendant when participating in dispute resolution by Arbitration”. Hope TNTP’s article is useful to readers.

Regards.

Terms of dispute settlement in economic contracts and note to the parties

Written by Phạm Huyền on 20 November, 2022. Posted in Legal newsletter.

Dispute settlement is a clause that appears in most economic contracts to provide a settlement direction for the parties when a dispute arises. Accordingly, from this clause, the parties to the contract will resolve disputes by methods such as negotiation, conciliation, arbitration trade, or suing in Court. In the article below, TNTP would like to send readers some contents that businesses need to note about the Dispute Settlement law and the contracting economy.

What is an economic contract

An economic contract s an agreement between the parties on the establishment, change, or termination of civil rights and obligations in production activities, awarding change of goods, provision of services, and other agreements related to business purposes.

Depending on the signatories, economic contracts are expressed in different forms such as verbal, written, or otherwise. other…

What are the terms of dispute resolution?

Dispute settlement is an economic contraction a provision that provides for methods of settlement when a dispute arises. This is a mandatory clause that plays very important and is usually located near the end of the contract.

Accordingly, in this clause, the parties will agree on methods of dispute settlement such as:

Mediation between the parties.
Dispute resolution in Commercial Arbitration; or
Sue in Court.

What should enterprises pay attention to about the Dispute Resolution clause in economic contracts?

In practice when signing economic cracks instead of focusing too much on ute settlement provisions, the pares often focus on the scope of micro-work, price, duration of work, payment method, and payment term.

In addition, due to unforeseen reasons, disputes will arise, so when drafting and signing contracts, the parties often consider slight dispute resolution clauses When a dispute arises, the parties review this clause, but the contract is not specified, leading to many difficulties for the parties in the process of resolving disputes.

Therefore, to limit the above-mentioned issues, when signing economic contracts, the parties need to focus on developing dispute settlement clauses handicap. At the same time, the following should be noted:

Firstly, in the contract, it should be clearly shown that when a dispute occurs, what dispute resolution method do the parties apply?

Second, the parties need to agree on the priority order of dispute resolution methods. For example, the parties can agree to prioritize the method of resolving disputes by negotiation and conciliation.

Thirdly, in case the dispute settlement method is the Arbitration Center, it is necessary to determine which arbitral institution, location, and classification set the costs, and commitments of the parties, …

Can enterprises agree to choose both commercial arbitration and dispute resolution courts?

It is common for the parties to both agree to settle disputes at the Arbitration Center and resolve disputes at the Court. However, is this agreement by law? And if a dispute arises, one party initiates a lawsuit to the Court, the other party requests commercial arbitration to settle, and the jurisdiction belongs to the agency which mandarin?

The above-mentioned issues have been prescribed by lawmakers so that they can be applied in practice in the most reasonable way. Accordingly, the terms of dispute settlement in economic contracts are agreed upon by the parties. Including both methods of dispute resolution by Commerce Arbitration and Courts in the dispute resolution clause is contrary to the statutory provisions of the law.

In case one party initiates a lawsuit to the Court, and the other party requests arbitration to settle, the law provides for priority in commercial arbitration. If one of the parties requests the Court to solve the dispute, then immediately after receiving the petition, the Court must determine whether one of the parties has requested arbitration or not. If the disputing parties have an arbitration agreement, the Court must refuse to accept the case, unless the arbitration agreement is invalid or the arbitration agreement cannot be implemented (Article 6 of the Law on Commercial Arbitration 2010).

Above is the content of the article “Dispute settlement clauses in economic contracts and notes for the parties” TNTP sent to readers. Hope the above sharing is useful to readers.

Best regard.

Do legal entities incur criminal liability?

Written by Phạm Huyền on 19 November, 2022. Posted in Legal newsletter.

Do legal entities incur criminal liability? If yes, legal entities incur criminal liability when satisfying which conditions? Almost businesses concern about these questions when conducting business activities. To answer these questions, in this article, we will analyze the basis and scope of criminal liability of legal entities.

1. Are all legal entities incur criminal liability?

According to Article 74 of the Criminal Code 2015, amended in 2017 (“Criminal Code”), not all legal entities incur criminal liability, only corporate legal entities incur criminal liability.

Legal entities include two types: corporate legal entities and non-corporate legal entities. A corporate legal entity is a legal entity whose primary purpose is seeking profits and its profits shall be distributed to its members. Corporate legal entities include enterprises and other economic organizations.

2. Conditions must be satisfied when a corporate legal entity incurs criminal liability

Corporate legal entities only incur criminal liability when the following conditions are satisfied:

First, the criminal offence is committed on behalf of the corporate legal entity. An offence committed on behalf of the legal entity is the act of a person or people who are the employees or employers of the legal entity or the owners of the legal entity, etc. These people can hold certain positions in the legal entity, be the legal representative, or be authorized by the legal entity to perform tasks on behalf of the legal entity.

Second, the criminal offence is committed in the interests of the corporate legal entity. For this basis, it is necessary to clearly define between the interests of the legal entity and the personal interests of the subject performing the acts assigned or authorized by the legal entity. In the course of committing a criminal act, if it is determined that the offender takes advantage of the legal entity to perform additional acts for personal gain, the legal entity is not criminally liable for this act, the excess will be the liability of the implementing subject.

Third, the criminal offence is under the instructions or approval of the legal entity. Subjects with authority to direct, administer and approve in the legal entity may be the legal representative, the owner, the Members’ Council, or the Administration Council.

Fourth, the time limit for criminal prosecution specified in Article 27 of the Criminal Code has not expired. The time limit for criminal prosecution is a time limit set out by the Criminal Code and upon the expiration of which the offender does not face any criminal prosecution. The law stipulates four categories of time limits for criminal prosecution corresponding to four categories of crimes as follows:

(i) 05 years for less serious crimes;

b) 10 years for serious crimes;

c) 15 years for very serious crimes;

d) 20 years for extremely serious crimes.

3. Scope of criminal liability of corporate legal entities

According to Clause 2 Article 2 of the Criminal Code: “No corporate legal entity that commits a criminal offence that is not regulated in Article 76 hereof has to incur criminal liability”. According to the provisions of Article 76 of the Criminal Code, a corporate legal entity shall only incur criminal liability for 33 crimes belonging to the following 3 groups:

+ Economic offences: Article 188 (Smuggling); Article 189 (Illegal transport of goods or money across the border); Article 190 (Manufacturing and trading of banned goods); Article 191 (Possession and transport of banned goods); Article 192 (Manufacturing and trading of counterfeit goods); Article 193 (Manufacturing and trading of counterfeit food or food additives); Article 194 (Manufacturing and trading of counterfeit medicines for treatment or prevention of diseases); Article 195 (Manufacturing and trading of counterfeit animal feeds, fertilizers, veterinary medicines, pesticides, plant varieties, animal breeds); Article 196 (Hoarding); Article 200 (Tax evasion); Article 203 (Illegal printing, issuance, trading of invoices or receipts for payment of state revenues); Article 209 (Provision of false information or concealment of information in securities activities); Article 210 (Use of internal information for trading securities); Article 211 (Manipulation of securities market); Article 213 (Insurance fraud); Article 216 (Evading payment of social insurance, health insurance, unemployment insurance for workers); Article 217 (Offences against regulations of law on competition; Offences against regulations of law on multi-level marketing); Article 225 (Infringement of copyrights and relevant rights); Article 226 (Infringement of industrial property rights); Article 227 (Offences against regulations on survey, exploration and extraction of resources); Article 232 (Offences against regulations on extraction and protection of forests and forest products); Article 234 (Offences against regulations on protection of wild animals).

+ Environmental offences: Article 235 (Causing environmental pollution); Article 237 (Offences against regulations on environmental emergency prevention, response, and relief); Article 238 (Offences against regulations on the protection of irrigation works, embankments and works for protection against natural disasters; Offences against regulations on the protection of river banks); Article 239 (Import of wastes into Vietnam’s territory); Article 242 (Destruction of aquatic resources); Article 243 (Forest destruction); Article 244 (Offences against regulations on the protection of endangered and rare animals); Article 245 (Offences against regulations on management of wildlife sanctuaries); Article 246 (Importing, spreading invasive species).

+ Infringement upon public safety, public order: Article 300 (Terrorism financing); Article 324 (Money laundering).

4. Sentences against corporate legal entities committing crimes

According to Article 33 of the Criminal Code, the corporate legal entity shall incur only one primary sentence for a criminal offence committed and possibly one or more additional sentences.

Primary sentences include: a) Fine; b) Suspension of operation; c) Permanent shutdown.
Additional sentences include: a) Ban from operating in certain fields; b) Prohibition from raising capital; c) Fine if no administrative penalties are imposed.

According to Article 46, Article 82 of the Criminal Code, the corporate legal entity may be subject to one or more of the following judicial measures: a) Confiscation of money and items directly related to the crime; b) Return, repair of property or provision of compensation; offering of public apology; c) Compulsory restoration of an original state that has been changed due to the criminal act of the corporate legal entity; d) Implementation of other measures for mitigation and prevention of consequences.

Above is the article “Do legal entities incur criminal liability?“. We hope that corporate legal entities and businesses will gain certain values when following the article.

Elon Musk dismissed twitter employees and regulations of the warn act

Elon musk dismissed twitter employees and the WARN act

Written by Phạm Huyền on 17 November, 2022. Posted in Legal newsletter.

On October 27, 2022, Elon Musk – CEO of Tesla and Space X bought Twitter social network for $44 billion. Immediately after becoming the boss of Twitter, Elon Musk proceeded to dismiss 3,500 employees, and plans to dismiss the remaining 75% of Twitter’s employees. Is the action of the boss of Twitter contrary to the law of the United States, as well as the provisions of the WARN Act? Let’s find out with TNPT.

1. What is WARN?

WARN stands for Worker Adjustment and Retraining Notification Act. This is a federal law of the United States born in 1998 with the purpose of requiring employers to give advance notice to employees of the closure or dismissal of employees for the purpose of protecting the legitimate rights and interests of employees against the risk of job loss.

Because WARN is a federal law, different US states may enact WARN of state to match their respective state laws. In the case of Twitter, since California is the state where Twitter is headquartered, the California WARN Act may be applied (“California WARN”).

2. Regulations of California WARN

California WARN requires that employers give workers 60 days advance notice in written before taking measures to cut down 100 or more workers. Mass dismissal actions are defined as dismissal equal to at least 33% of the total workforce owned by the employer. If it breaks this rule, Twitter will face a fine of $500 for each day of the violation.

For this case, if Elon Musk really proceeded to dismiss 3500 employees right in October 2022, it would be a violation of California WARN regulations.

However, there are many reasons for us to believe that Elon Musk well prepared for this situation, as this is not the first time the boss of Twitter has been embroiled in accusations related to dismissal.

3. The reason Elon Musk may not have violated the California WARN

One of the basic provisions of the California WARN is that if a enterprise terminates a contract with 50 or more workers in a day, it must give at least 60 days notice in advance or pay the workers within 60 days.

Thus, in the case that Elon Musk notified 3500 employees of their dismissal but then he continued to pay them for 60 working days, it would not be considered a violation of WARN. Or another case, when 3500 employees received notice of dismissal, but 60 days later, those employees have not been dismissed and continue to work and receive salary at Twitter, then Twitter automatically has the right to suddenly abruptly fired these employees because they had properly performed at least 60 days of notice in advance.

Thus, if Elon Musk dismisses Twitter employees, if based on the principles prescribed by US law, in theory, Elon Musk can dismiss any employee he wants, as long as the dismissal complies with the requirements of the law and is not contrary to California WARN.

Elon Musk’s words and actions often do not go together, this is clearly shown in the way Elon Musk acquired Twitter when this billionaire repeatedly abandoned the agreement but ultimately decided to buy the 2nd largest social network in the world. Therefore, Elon Musk’s statement about the mass dismissal of Twitter employees is causing a stir in the United States, if not accompanied by violations, will not cause any damage to employees at Twitter and will of course not violate California WARN regulations.

Behind every seemingly unusual action Elon Musk is certainly guaranteed by his legal team and lawyers, and maybe every unusual action will also have certain reasons to bring benefits for this billionaire.

In addition, it is impossible not to mention that the employment relationship on a voluntary basis (“At-will”) is applied throughout the United States (except for the state of Montana). Accordingly, an employer in the United States has the right to terminate an employee’s contract at any time for any reason, (except for reasons prohibited by law or without cause) without incurring legal responsibility. Similarly, employees are also free to terminate their employment relationship with their employer at any time, for any reason or even for no reason, without any legal consequences.

Therefore, we believe that Elon Musk and his employees have equal rights and obligations under US law. However, Elon Musk’s employee dismissals are simply more attention-grabbing than Twitter employees’ resignation statements. We will further analyze the labor relations on the voluntary spirit (“At-will”) of the US law in another article.

Above is an article by TNTP analyzing Elon Musk’s dismissal of Twitter employees and the regulations of the WARN Act, hopefully the article will be useful to you.

Sincerely,

Specific regulations on debt collection in the US

Particular regulations on debt collection in the United State

Written by Phạm Huyền on 15 November, 2022. Posted in Legal newsletter.

In the United State – a country with a developed economy where the spending is mostly based on credit – by now pay later, the debt collection is particularly concerned and strictly controlled. In 1978, the US Congress enacted the Fair Debt Collection Practices Act (FDCPA) to control debt collection activities in the US, protect consumers’ interests, and create a transparent environment for debt collection. In this article, we will share with readers some typical contents of the US debt collection regulations:

1. Overview of the FDCPA

a) Law enforcement agency

FDCPA is enforced by the US Federal Trade Commission – a government agency responsible for consumer protection throughout the United States.

b) Regulated subjects

According to FDCPA’s provisions, the regulated subjects are debt collectors. Debt collectors are the party who performs the debt collection. Debt collectors may include debt collection companies, agencies, lawyers, and third-party companies that acquire debt and proceed with debt collection at a later stage (debt trading companies).

c) FDCPA’s features

The FDCPA does not protect the debtor from those trying to collect the debt. For example, if you owe money to your local hardware store and the store owner calls you to collect the debt, that person is not a debt collector under this Act’s scope of regulation. The FDCPA is only applied to third-party debt collectors, such as those who work for a debt collection agency. Credit card debt, medical bills, student loans, mortgages, and other household debts are all regulated by this Act.

2. Some basic contents of the FDCPA in the US

a) Time of communication in connection with debt collection

Debt collectors are not allowed to arbitrarily contact or communicate with the debtors for debt collection. With the prior consent of the consumers (verbally or in writing), the debt collector may contact the consumer before 8:00 a.m. or after 9:00 p.m. or during the consumer’s working hours.

b) Consumer’s right for refusal of meeting and response to debt collectors

Consumers have the right to request in writing that the debt collectors cease further communication with them for debt collection. To exercise this right, consumers should note the following:

– Send a written request to the debt collector for communication ceasing.

– Retain a copy of this document. Consumers should submit a request by post and request the post office to send them a report of successful delivery.

Accordingly, the consumers may have a valid proof of having sent a request of communication ceasing to the debt collectors.

c) Communication with a third party on consumers’ debt

If the consumers have an authorized attorney, the debt collector may contact the consumer’s attorney for the debt-related issue. Without an attorney, the debt collector may only contact a third party (including colleagues, friends, relatives, etc.) to inquire about the consumer’s home address and phone number. Normally, the debt collector is not allowed to contact the third party more than once nor to mention the pending debts.

d) The debt collector is responsible for proving the consumer’s debt

If the consumers send a written request to the debt collectors, stating that they do not owe the debt or ask the debt collector to provide proof of the debts, the debt collector must terminate communication with the debtor. The consumer must submit this request within 30 days of receiving the debt collection notice. However, debt collectors can continue to contact consumers after they provide proof of debt such as a copy of a spending bill.

e) The debt collector is not allowed to perform the following acts

Threats

Debt collectors must not threaten or harass consumers or any third parties they contact for debt collection.

False representations

Debt collectors must not use any false representations when contacting parties for debt collection.

Unfair practices

Debt collectors must not perform unfair practices when collecting debts.

f) Rights of debt payment selection

For consumers with multiple debts, they have the right to choose which debt will be paid first. Debt collectors are not allowed to collect debts that consumers believe they do not owe.

g) What should consumers do if the debt collector is found to have violated the law?

Consumers have the right to sue the debt collector in a State or Federal Court within one year from the date of violation acknowledgment. If consumers win the case, they will be compensated by the debt collector with an equal amount to the incurred expenses arising from the debt collector’s fault (if sufficient evidence is provided), for example, a reduction in wages or medical bills and litigation costs. In the absence of evidence of damages, the court may order the debt collector to pay up to US$1000.

It can be seen that under the regulation of FDCPA, the debt collection process in the US is quite complicated and requires a deep and correct understanding of US law as well as the division in the US legal system. Vietnamese companies may review the regulations, obtain practical lessons as well as choose to conduct debt collection in the US effectively. The above is some legal knowledge of particular regulations of debt collection in the US. We hope that this article will be of help to you.

Which is the Court’s jurisdiction in a lawsuit for debt collection initiated by companies?

Written by Phạm Huyền on 15 November, 2022. Posted in Dispute Settlement, Giải quyết tranh chấp.

When a contractual dispute arises, determining the Court’s jurisdiction is an important step for companies to initiate a lawsuit for debt collection. In the following article, TNTP will analyze the Court’s jurisdiction to settle contractual disputes determined in four steps as follows:

1. Case-by-case jurisdiction

Determining the court’s jurisdiction on a case-by-case basis is to determine whether the dispute falls under the Court’s jurisdiction. The Civil Procedure Code 2015 stipulates the Court’s jurisdiction on a case-by-case basis from Articles 26 to 34.

Specifically: The court’s jurisdiction to settle business and/or trade contract disputes is determined under Article 30.

2. Court-Level Jurisdiction

The Law on Organization of People’s Courts divides the Court’s jurisdiction into the following levels:

The Supreme People’s Court;
Superior people’s courts;
Courts of provinces and centrally run cities (collectively referred to as the Courts of provinces);
Courts of urban districts, rural districts, towns, provincial cities (collectively referred to as the Courts of districts);
Military courts.

Courts of districts have jurisdiction over disputes specified in Articles 35 and 36 of the Civil Procedure Code; Courts of provinces have jurisdiction over disputes specified in Articles 37 and 38 of the Civil Procedure Code. Commercial business disputes fall under the jurisdiction of Courts of districts. For business and/or trade disputes involving foreign elements, the jurisdiction belongs to the Courts of provinces. In business disputes, both parties may be established and operate in Vietnam or either of them is established and operate outside the Vietnamese territory, in this case:

If a dispute arises between companies both established and operating in Vietnam, it will fall under the e jurisdiction of the People’s Court of district;

If the dispute is between companies with one of which is established and operating outside the Vietnamese territory, it will fall under the jurisdiction of the People’s Court of province.

3. Territorial Jurisdiction

The territorial jurisdiction of Courts to settle contractual disputes shall be determined as follows:

The Courts of the localities where the defendants reside or work, applicable to defendants being individuals, or where the defendants are headquartered, applicable to defendants being agencies or organizations, shall have the jurisdiction to settle according to first-instance procedures for business contract disputes prescribed in Articles 30 of Civil Procedure Code;

The involved parties shall have the right to agree with each other in writing to petition the Courts of the localities where the plaintiffs reside or work, applicable to plaintiffs being individuals, or where the plaintiffs are headquartered, applicable to plaintiffs being agencies or organizations, to settle business and/or trade disputes prescribed in Articles 30 of this Code;

Disputes over real estate must be settled by Courts where such real estate is located.

4. Jurisdiction of Court at the request of Plaintiff

The plaintiff has the right to choose a court to resolve business and/or trade contract disputes in the cases specified in Clause 1, Article 40 of the Civil Procedure Code:

a) If the plaintiff does not know where the defendant resides or works or where his/her head office is located, the plaintiff may petition the Courts of the area where the defendant last resides or works or where the head office of the defendant is last located or where the defendant’ properties are located to settle the case;

b) If the dispute arises from the operation of a branch of an organization, the plaintiff may petition the Court of the area where the organization’s head office is located or where its branch is located to settle it;

c) If the defendant does not have a residence place, workplace or head office in Vietnam or the case is related to disputes over alimonies, the plaintiff may petition the Court of the area where he/she resides or works to settle the case;

g) If the dispute arises from a contractual relation, the plaintiff may petition the Court of the area where the contract is performed to settle the case;

h) If the defendants reside, work or are headquartered in different places, the plaintiff may petition the Court of the area where one of the defendants resides or works or is headquartered to settle the case;

i) If the dispute is over immovables which exist in different localities, the plaintiff may request the Court of the area where one of such immovables exists to settle the dispute.

After properly determining the Court’s jurisdiction, the authorized Court receives and reviews the lawsuit petition. If the lawsuit petition is valid, the court shall notify the plaintiff of the payment of fees and court cost advances. After receiving the fee receipt and the court cost advance, the court officially accepts the case.

Accordingly, enterprises can base on the Court’s jurisdiction to settle contractual disputes to determine where to file a lawsuit petition for debt collection or dispute settlement, to save time and avoid the fact that the petition has to be re-transferred to the competent court for settlement.

Thus, to maximize the protection of companies’ legitimate rights and interests by the law, companies should pay attention to the Court’s jurisdiction matter. Above are the sharing of TNTP on determining the jurisdiction of the Court in a lawsuit for debt collection. We hope it is useful to companies.

Sincerely.

what methods are considered legal debt collection activites

What methods are considered legal debt collection activities?

Written by Phạm Huyền on 15 November, 2022. Posted in Debt Collection, Thu hồi nợ.

Many people only know about prohibited debt collection activities and believe debt collection is illegal. However, there are still legal debt collection activities carried out so far. What are the methods of debt collection? What should be kept in mind when implementing those methods? The article “What methods are considered legal debt collection activities?” will answer the above legal question.

1. Contact the debtor to urge and remind the debtor to pay the debt

The first legal debt collection activity is to contact the debtor to urge and remind the debtor to pay the debt. Currently, the ways to contact the debtor are:

Meet face to face. It is a traditional method that has better advantages than calling and sending. Face-to-face meetings have the highest probability of successful negotiation of all the ways of contact. In addition, the entitled party can assess the debtor’s goodwill towards debt repayment if the debtor agrees to meet. However, face-to-face meetings also have the disadvantage of being more difficult to schedule than other ways of contacting. Besides, not all debtors agree to meet with debt collectors.

Note: To collect debt legally, when meeting, the entitled party needs to control their emotions well, use appropriate words, and not offend the honor and dignity of the debtor.

It is also a flexible way of contacting, which helps the parties to exchange and find a solution without having to arrange a time. However, calling will only be helpful when the debtor is willing and proactive. In addition, calling has a large disadvantage that the content of the discussion is often not considered evidence if initiating a lawsuit at a competent authority.

Note: The entitled party may only call within the time and number of times permitted by the law. Specifically, the entitled party has the right to call to urge and remind the debtor up to 5 times/day and in the period from 7 a.m to 9 p.m.

Send documents, and letters to request payment or confirm debts by email or post. This method of debt collection is very common if the debtor is a company or enterprise. Sending a document, or letter of payment request has a great advantage that it can become evidence if it has legal effect and is accepted by a competent authority. With corporate debtors, the rate of initiating a lawsuit is higher than the debts of individuals. The entitled party should pay attention to this and send documents to the debtor regularly.

Note: Documents and scans need to be signed, stamped, and saved with proof that the entitled party has sent the documents (For example: receipts, postal notices, and mailing screens …) In this way, these documents will have a legal effect and can be considered evidence if the entitled party initiates a lawsuit against the debtor later.

2. Initiate a civil case

In case the debtor fails to pay the debt despite urging and reminding, the entitled party can initiate a civil lawsuit. It is one of the legal debt collection activities to protect the legitimate rights and interests of the entitled party.

If you wish to initiate a civil action, the entitled party should identify and clarify some things as follows:

Is the debtor able to pay the debt? The debtor must have money and assets to have solvency. If the debtor cannot pay, even if the entitled party initiates a lawsuit, the debt collection activity will not be successful.
Is the debt big enough to initiate a civil case? When a lawsuit is submitted, the entitled party must know they will have to pay a cost to collect the debt. It could be the cost of hiring a lawyer; expenses for the preparation of documents and lawsuit dossiers; fees for collecting evidence during the litigation process; court fees and judgment enforcement fees (if any).

Therefore, if the entitled party wants to get a benefit, the debt must be relatively larger than the entire cost. For small debts of less than 100,000,000 VND, the entitled party is likely to lose up to ⅓, even half, for litigation. The total time for a civil case from filing a petition until the debtor pays off the debt ranges from 6 months to several years. Thus, the amount the entitled party receives after deducting all costs will not bring much benefit.

3. Denounce crimes

In some special cases, if the debtor cuts off all contacts, flees his residence, and shows signs of deception or abusing trust to appropriate property, the entitled party may denounce crimes. It is a legal debt collection activity to protect the interests of the entitled party.

Usually, the most common crimes related to debts are Fraud to appropriate property and Abuse of trust to appropriate property. In particular, the crime of fraud to appropriate property is specified in Article 174 of the Penal Code 2015 (amended and supplemented in 2017). The crime of abusing trust to appropriate property is specified in Article 175 of the Penal Code 2015. These two crimes are often confused with each other. Therefore, the entitled party should make a clear distinction to avoid being refused by the competent authority for the false denunciation of crimes.

Above are the legal debt collection activities up to now. If you are looking to collect an overdue debt, you can apply in your case. TNTP hopes the article is helpful to you.

Labor disputes brought to court without conducting mediation

Written by Phạm Huyền on 14 November, 2022. Posted in Giải quyết tranh chấp, Giải quyết tranh chấp.

Normally, individual labor disputes must be resolved through mediation by labor mediators before being brought to Labor Arbitration Council or Court. However, in some cases of individual labor disputes (“LD”), the parties can initiate a lawsuit directly to Court to ask for a resolution without conducting mediation. So, which are the cases? Let’s find out through the article below.

I. Labor disputes can be brought directly to Court without conducting mediation

Clause 1, Article 188 of Labor Code 2019 stipulates that cases of labor disputes between employees and employers can be sued directly to Court without going through mediation. Accordingly, such disputes include:

Disputes over dismissal for disciplinary reasons; unilateral termination of employment contracts;
Disputes over damages and allowances upon the termination of employment contracts;
Disputes between a domestic worker and his/her employer;
Disputes over social insurance in accordance with social insurance laws, disputes over health insurance in accordance with health insurance laws, disputes over unemployment insurance in accordance with employment laws, disputes over insurance for occupational accidents and occupational disease in accordance with occupational safety and health laws;
Disputes over damages between an employee and an organization dispatching the employee to work overseas under a contract;
Disputes between the outsourced worker and the client enterprise.

Conversely, if not falling into the above cases, those disputes must be resolved through mediation by the labor mediator in accordance with the procedures in Article 188 of Labor Code 2019 before requesting Labor Arbitration Council or Court to settle.

II. Jurisdiction of Court to settle individual labor disputes

The parties need to determine the correct jurisdiction of the court to settle labor disputes according to the principles of the Civil Procedure Code 2015 (“CPC 2015”). Determining the competent court helps to quickly accept and settle the case and also to protect the legitimate rights and interests of the infringed party.

Step one, determining the jurisdiction of the Court by level regulated in Article 35 and Article 37 of CPC 2015, specifically:

People’s Courts of districts shall have the jurisdiction to settle according to the first-instance procedure of the labor disputes prescribed in Article 32 of CPC 2015.
People’s Courts of provinces shall have the jurisdiction to settle labor disputes involving foreign parties or assets or requiring judicial assistance.

Step two, determining the territorial jurisdiction of Courts stipulated in Article 39 of CPC 2015, specifically:

Court of the localities where defendants being individuals reside or where defendants being organizations are headquartered.
The involved parties shall have the right to agree with each other in writing to request Courts of the localities where plaintiffs reside or work to settle the labor dispute.

Jurisdiction of Courts selected by plaintiffs is specified in Article 40 of CPC 2015 as follows:

If the plaintiff does not know where the defendant resides or works or where his/her head office is located, the plaintiff may petition the Courts of the area where the defendant last resides or works or where the head office of the defendant is last located or where the defendant’ properties are located to settle the case;
If the dispute is over the compensation for damage or allowance upon the termination of an employment contract, over social insurance, health insurance, unemployment insurance, the rights and/or interests about the job, wages, income, and other working conditions for the employees, the plaintiff being an employee may petition the Court of the area where he/she resides or works to settle it;
If the dispute arises from the employment of a contractor or an intermediary, the plaintiff may petition the Court of the area where his/her actual employer resides, works, or is headquartered or where the contractor or the intermediary resides or works to settle it;
If the defendants reside, work, or are headquartered in different places, the plaintiff may petition the Court of the area where one of the defendants resides or works or is headquartered to settle the case;

Combining the results of the two steps above, we can determine which Court has the authority to settle labor disputes to initiate labor disputes.

III. Legal services of TNTP when participating in the settlement of labor disputes

The legal services that TNTP provides when participating in the settlement of labor law cases include:

Advising on the rights and obligations of the disputing parties;
Advising on options for dispute resolution (can be negotiated, mediated, or sued in court);
Instructing the client to collect evidence;
Participating in negotiations and mediation in cases of labor disputes;
Advising on grounds and procedures for initiating lawsuits at Court;
Drafting lawsuit files and other documents to serve the settlement of the case;
Participating in court hearings (first instance, appellate trial) as a lawyer to protect the client’s legitimate rights and interests;
Being the represented lawyer to protect the legitimate rights and interests of the client during the execution phase.

Above is the content of the article “Labor disputes brought to Court without conducting mediation”. If you need assistance with legal issues related to labor law, please contact TNTP for timely support.

Best regards.

Bases for establishment of civil rights under the Civil Code 2015

Written by Phạm Huyền on 11 November, 2022. Posted in Legal newsletter.

Entities with different civil legal capacities have different civil rights. When entering into a legal relationship, the entities have the right to perform certain acts by themselves, the right to request the obligor to perform the obligation, and the right to request the competent state agency to protect their legitimate rights and interests when their rights are infringed. What grounds are civil rights established? This article will analyze 09 bases for establishing civil rights under Article 8 Civil Code 2015.

1. Contract

Civil rights are established through a contract, expressed in specific terms in the contract, and guaranteed by the reciprocal obligations of the other party. When there is an event that one party performs an obligation, the other party will be entitled to establish rights and vice versa. For example, for a sale and purchase contract, when the buyer has fully paid the seller, the buyer has the right to receive the property and has the right to own the property in the quantity and quality agreed by the two parties.

2. Unilateral legal act

A unilateral legal act is an activity expressing the will of one party to arise, change or terminate civil rights and obligations without depending on the will of the other party. The person who has a unilateral legal action must be a person with certain rights, and this person performs the act to give others his or her rights. A unilateral legal act is a basis for establishing civil rights in the relationship of promising rewards (Article 570 Civil Code 2015), prize competitions (Article 573 Civil Code 2015), and wills (Article 624 Civil Code 2015). However, unilateral legal act only gives rise to civil rights when the expressed will is not contrary to law and social ethics.

3. Decision of court or other competent state agency as prescribed

This is a fairly typical basis for establishing civil rights because decisions of the court and other competent agencies are the results of the dispute settlement process, litigant requests, etc., which are mandatory with the parties and guaranteed by the Socialist Republic of Vietnam.

For example, the court issues a judgment, which forces A to pay B 500 million dong, the judgment is the basis for establishing B’s ownership of 500 million dong that A must pay. In case A does not voluntarily pay, B has the right to request the civil judgment enforcement agency to execute the judgment.

4. Outcomes of labor, production, and business; or creation of entities of intellectual property rights

The basis established above is mainly to establish the owner’s own rights to the property he or she has made, that is, the rights recognized by law on possession, use, and disposition. This is the basis for establishing typical civil rights and is less likely to be disputed (except for intellectual property rights).

5. Possession of property

Possession of property means that the entity holds and controls the property directly or indirectly as the holder of the right to the property. Civil rights are established only in the case of legal possession. For possession without legal grounds or illegal, the possessor must perform obligations instead of having rights. Normally, the person possessing a property with a legal basis will enjoy the rights from the property, such as the right to use and exploit it to produce yields and profits.

6. Illegal use of assets or illegal gain therefrom

In Article 236 of the Civil Code 2015, the possessor or beneficiary of the property who has no legal basis but is honest, continuous, and public for a period of 10 years for movable property, and 30 years for immovable property, shall become the owner of that property from the time of commencement of possession unless otherwise provided for by law. Therefore, if the entity meets the above conditions, the use and the benefit of property without a legal basis is also considered a case of establishing civil rights.

7. Damage caused by an illegal act

When the entity commits an illegal act that infringes upon the life, health, honor, dignity, reputation, and property of another person, the damage-causing entity is obliged to compensate for the damage he/she has caused to the aggrieved party. However, to claim compensation, the aggrieved party is obliged to prove the breach of the other party and the damage. Currently, the aggrieved party has the right to receive compensation and establish ownership of the indemnified property from the damage-causing party.

8. Performance of acts without authorization

According to Article 574 of the Civil Code 2015, the performance of acts without authorization means the voluntary performance of acts by a person being under no obligation to perform the act, solely for the benefit of a beneficiary, without the knowledge of the beneficiary, or with its knowledge but without the beneficiary raising any objection. Therefore, the person performing the work is paid the reasonable costs that he has spent to perform the work.

9. Other bases specified by law

The law proposes and expands the provisions in Clause 9: “Other bases prescribed by law” to ensure a complete listing of grounds for establishing civil rights.

Above is the article “Bases for establishment of civil rights under the Civil Code 2015”. We hope this article was useful to you.

Best regards,

Comment on precedent no.11/2017/AL

Written by Phạm Huyền on 11 November, 2022. Posted in Legal newsletter.

In business activities, it is not strange for enterprises and companies to borrow money from banks. This is a suitable option for enterprises to solve temporary financial problems. However, most loans at banks require collateral. In case the collateral is property owned by the guarantor, the handling of the property will be simpler. But in the event that part or all of the collaterals is not owned by the guarantor, how will the property be handled? The Court’s opinion on this issue is expressed in Precedent No.11/2017/AL (adopted by the Council of Judges of the Supreme People’s Court on December 14, 2017 and published under Decision No. 299/QD-CA dated December 28, 2017 of the Chief Justice of the Supreme People’s Court).

Summary of precedent no.11/2017/AL

1. On June 16, 2008, Joint Stock Commercial Bank A (“Bank A”) and B Company Limited (“Company B”) signed Credit Contract No. 1702-LAV-200800142. Accordingly, Bank A lends Company B VND 10,000,000,000. Bank A has disbursed VND 3,066,191,933 to Company B.

The collateral for the above loan is the house and land at No. 432, Group 28, Ward E, District G, Hanoi City, owned and used by Mr. Tran Duyen H (“Mr. H”) and Ms. Luu Thi Minh N (“Mrs. N”) under the Contract of mortgage of land use rights and assets attached to the land dated June 11, 2008. This contract was notarized by the Notary Office 6 of Hanoi on June 11, 2008, and certified the secured transaction registration by the Department of Natural Resources and Environment of Hanoi on June 11, 2008.

As of October 5, 2011, Company B still owes principal and interest of VND 4,368,570,503.

2. On October 30, 2009, Bank A and Company B signed Credit Contract No. 1702-LAV-200900583. Accordingly, Bank A lends Company B USD 180,000. Bank A has fully disbursed USD 180,000.

The collateral for the above loan is a shipment of 19 finished product trucks with a tonnage of 1.75 tons, brand JMP new 100%, worth VND 2,778,750,000 of Company B under the Mortgage Contract No. 219/2009/EIBHBT -CC dated October 29, 2009 (“Contract No. 219”). This mortgage contract was registered for secured transactions at the Register of Secured Transactions in Hanoi on November 2, 2009.

At the first-instance court hearing, Bank A confirmed that Company B had fully paid off the principal debt and the remaining interest was USD 5,392.81; The collateral is 19 cars, 18 cars have been sold, only 01 car remains.

3. Since Company B did not pay all the principal and interest debts, Bank A sued Company B and requested the Court to:

– Force Company B to pay the principal and interest of the Credit Contract No. 1702-LAV-200800142 which is VND 4,368,570,503; and

– Force Company B to pay USD 5,392.81 of the interest debt of Credit Contract No. 1702-LAV-200900583.

If company B fails to pay or fails to pay in full, Bank A proposes to sell the collateral as:

– House ownership and residential land use rights at No. 432, Group 28, Ward E, District G, Hanoi City are owned and used by Mr. H and Mrs. N (“House and Land No. 432”);

– 01 finished product truck under the Mortgage Contract No. 219/2009/EIBHBT-CC.

4. At the first-instance court hearing, the parties had the following opinions:

– The defendant, Company B acknowledges the amount of principal, interest and collateral, but requests the Bank to allow the debt to be repaid in installments.

– Persons with related interests and obligations, Mr. H and Ms. N, admitted signing the House and Land No. 432 to secure a maximum loan of VND 3,000,000,000 from Company B. Mr. H and Ms. N request the Bank to extend the debt of Company B to arrange repayment for the Bank.

– The person with related rights and obligations is Mr. Tran Luu H2 (“Mr. H2”) on behalf of the children and grandchildren of Mr. H and Mrs. N living at home, land number 432 presented at the end of 2010, he just knows that his parents (Mr. H and Mrs. N) mortgage the family’s house to secure a loan from Company B. On the land that Mr. H and Mrs. N mortgage, there is a 3.5-storey house. which Mr. H2 and Mr. Tran Minh H paid to build in 2000, currently 16 people are living in. When signing the mortgage contract, the Bank did not consult with you and the people living in this house and land. Therefore, Mr. H2 asked the Court not to recognize the mortgage contract.

5. In the first-instance business and commercial judgment No. 59/2013/KDTM-ST dated September 24, 2013 (“First instance judgment”), the Hanoi People’s Court (“HN Court”) decided:

– Accepting the petition of Bank A:

Forcing Company B to pay Bank A the outstanding amount of Credit Contract No. 1702-LAV-200800142 including principal, overdue interest, overdue interest, and late payment penalty interest with a total amount of 6,054.407,123 VND;
Forcing Company B to pay Bank A the outstanding amount of Credit Contract No. 1702-LAV-200900583 which is USD 5,392.81

– In the event that Company B fails to pay the debt or fails to pay the outstanding amount of Credit Contract No. 1702-LAV-200800142, Bank A has the right to request the Civil Judgment Enforcement Department (CJED) of Hanoi city to handle the collateral which is House and Land No. 432 and the asset is a JMP truck with a tonnage of 1.75 tons assembled by Company B under Contract No. 219.

6. After the first-instance trial, the defendant and people with related interests and obligations all filed an appeal against the first-instance judgment.

7. At the Appellate Commercial and Business Judgment No. 111/2014/KDTM-PT dated 7/7/2014 (“Appellate Judgment”), the Supreme People’s Court in Hanoi (“Supreme Court”) decision:

– Uphold the decision of the first instance judgment on the loans and money that Company B must pay to Bank A

– Cancel the third party’s decision on mortgage of land use rights and properties attached to land

– Hand over the case dossier to the Hanoi Court to determine the part of the legal property owned by Mr. H and Mrs. N as security collateral for Company B.

8. After the appellate trial, Bank A and Hanoi Court made a written request to review the appellate judgment according to cassation procedures.

9. At the cassation appeal, the Chief Justice of the Supreme People’s Court appealed against the appellate business and commercial judgment of the Court of Appeal of the Supreme People’s Court in Hanoi. Proposing the Judicial Council of the Supreme People’s Court to annul the appellate business and commercial judgment of the Court of Appeal of the Supreme People’s Court in Hanoi and the first-instance business and commercial judgment of the People’s Court of Hanoi City, hand over the case dossier to the People’s Court of Hanoi for re-trial in accordance with law.

Comment of precedent no.11/2017/AL

Based on the summary precedent no.11/2017/AL, TNTP has a few comments as follows:

1. Conditions for a contract to mortgage land use rights

When mortgaging land use rights and/or assets attached to land, there are 03 cases as follows: (i) Mortgage of both land use rights and assets attached to land; (ii) Mortgage of land use rights but not mortgaged land-attached assets; (iii) Mortgage of assets attached to land but not mortgage of land use rights.

2. Mortgage of both land use rights and properties attached to the land

In case the mortgagor secures the property as both land use rights and assets attached to the land, in addition to the conditions for the transaction to be valid as prescribed in Article 117 of the Civil Code 2015, only the land use right is required. and assets attached to the land are owned by the mortgagor, the contract of mortgage of the property shall be legally valid.

Above is a comment on Precedent no.11/2017/AL of TNTP. Hopefully this article is useful to help enterprises limit the risks in drafting and resolving Contract disputes.